Citation Nr: 1124375
Decision Date: 06/28/11 Archive Date: 07/06/11
DOCKET NO. 07-24 484 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to a higher initial rating for orthopedic residuals of low back injury, rated as 10 percent disabling prior to May 17, 2005, and since July 1, 2005.
2. Entitlement to a higher initial rating for neurologic residuals of low back injury.
3. Entitlement to a total disability rating due to individual employability resulting from service connected disability (TDIU).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
A. Robben, Associate Counsel
INTRODUCTION
The Veteran's unconfirmed active duty service was from May 1976 to November 1984.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which, in pertinent part, granted service connection for residuals of low back injury, with a 10 percent rating assigned, effective May 24, 2004.
In a December 2005 rating decision, the RO granted a temporary total disability rating due to hospitalization for over 21 days, effective May 17, 2005. 38 C.F.R. § 4.29 (2010). The 10 percent disability rating was resumed on July 1, 2005. Therefore, the issue on appeal has been recharacterized as entitlement to a higher initial rating for orthopedic residuals of low back injury, rated as 10 percent disabling prior to May 17, 2005, and since July 1, 2005.
In a July 2007 VA Form 9, the Veteran indicated that he wanted to provide testimony before the Board at the RO. However, in February 2009, the Veteran stated that he did not want a hearing before the Board. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2010).
In December 2005 the Veteran claimed entitlement to a total rating based on individual unemployability (TDIU). In November 2007, the RO denied entitlement to this benefit. The Veteran did not submit a notice of disagreement. Nevertheless, a claim for TDIU is implicitly raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case the veteran has satisfied each of these requirements; therefore, the issue is addressed herein.
The issues of entitlement to a higher initial rating for neurologic residuals of low back injury and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The Veteran's orthopedic residuals of a low back injury are manifested by limitation of forward flexion to less than 30 degrees without unfavorable ankylosis of the entire thoracolumbar spine or doctor prescribed bedrest for incapacitating episodes having a total duration of at least six weeks during the past twelve months.
CONCLUSION OF LAW
The criteria for a rating of 40 percent for orthopedic residuals of a low back injury have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Code 5237, 5242, 5243 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).
The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see
38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim.
Legal Criteria-Initial Ratings
Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski,
1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.
Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Residuals of Low Back Injury-Orthopedic Impairment
The Veteran's lumbar spine disability has been evaluated as 10 percent disabling under Diagnostic Codes 5237.
Under the formula for rating spine disorders (Diagnostic Codes 5235-5242), a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is in order for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. Also, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees.
Unfavorable ankylosis is a condition where the entire thoracolumbar spine is held in flexion or extension and the condition results in one or more additional symptoms listed in the rating criteria. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine, Note (5) (2010).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 20 percent evaluation contemplates intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately.
In other words, given the above criteria, the Veteran is entitled to an increased evaluation only on three bases: limitation of flexion to 30 degrees (bearing in mind the applicability of DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995) and 38 C.F.R. §§ 4.40 and 4.45), favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. Other symptoms, such as limitation of motions other than flexion, muscle spasm, and abnormal spinal contour, are fully contemplated by the assigned 10 percent evaluation and do not warrant further discussion with regard to the question of whether an increased evaluation is warranted.
The evidence of record demonstrates that forward flexion of the lumbar spine has been limited to 30 degrees or less since the effective date of service connection. In a December 2004 examination for VA, "In-/reclination" (as translated from the original German), which is interpreted here as forward flexion and extension, was recorded as possible to 10 degrees and zero degrees, respectively. In a November 2007 private examination, the Veteran was found to be able to bend forward by 10 degrees. While sitting, his thoracic spine was limited by pain in all directions and he was able to bend forward only to 20 degrees.
The record does not show any periods of doctor prescribed bedrest; thus there has been no showing of incapacitating episodes. Moreover, at all times the Veteran has demonstrated the ability to move his lumbar and thoracic spine at least to 10 degrees, and therefore there is no evidence of ankylosis.
The Board recognizes that the ranges of motion in terms of forward flexion were not recorded prior to the Veteran's September 2004 surgery to reposition his spinal fusion at L3/4. However, the record clearly establishes that the Veteran had limitation of motion and severe, chronic pain syndrome due to his service connected low back injury throughout the period here on appeal. In fact, this severe pain appears to have been the impetus behind the September 2004 surgery. Furthermore, in November 2005, the Veteran stated that the September 2004 surgery provided no improvement in his low back and he still had strong back pain and little movement.
Therefore, resolving all doubt in favor of the Veteran, the Board finds that a 40 percent disability rating, but no more, is warranted based on orthopedic limitation of motion for the entire period here on appeal.
ORDER
A 40 percent disability rating prior to May 17, 2005, and since July 1, 2005, for orthopedic residuals of low back injury is granted.
REMAND
There is evidence of neurologic impairment possibly related to his service-connected lumbar spine disability. During a June 2003 private examination, the Veteran reported lumbar spine pain syndrome with a tingling paresthesias or piercing pain radiating into the right left from the upper leg to the knee. The December 2004 examination for VA revealed a pseudo-positive Lasègue sign at 70 degrees in the left lower extremity and at 80 degrees in the right, an upper thigh stretch weakness 4/5 on both sides, and hypoesthesia dermatome L4 on both sides. During the November 2007 examination, he reported radiating pain from the middle and upper lumbar spine to both legs, on the left all the way to the knee and on the right all the way to the foot. He further complained of right foot numbness, which was present regardless of whether he was moving the area, numbing of the upper thighs on the dorsal side and the lower thighs as well as a burning on the outer edge of the foot and the inside of the foot.
The record indicates that the Veteran has other non-service connected disabilities involving his cervical spine, shoulders and knees. It is not clear whether his reported neurologic symptoms are attributable to his service connected low back injury or other non-service connected disabilities. The examination reports do not contain all the findings to rate the neurologic component of the back disability. Therefore, the Veteran must be provided with a VA neurological examination to determine the nature and severity of all current neurologic symptoms.
The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2010).
The Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtaining an examination which includes an opinion on what effect the Veteran's service connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (1998).
In this case, there is evidence that the Veteran's service connected and non-service connected disabilities together preclude employment. However, an opinion with a supporting rationale regarding whether the Veteran's service connection residuals of low back injury precludes gainful employment is still outstanding and must be obtained upon remand.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a neurologic examination to determine the severity of any neurologic disability associated with the service-connected low back disability. The examiner should review the claims folder and indicate that such a review was completed. All indicated testing, including EMG testing should be conducted.
The examiner should report all neurologic impairment resulting from the service connected residuals of a low back injury. The examiner should identify the nerve impaired and indicate whether there is complete or partial paralysis, neuralgia, or neuritis; and whether any partial paralysis, neuritis or neuralgia is mild, moderate, moderately severe, or severe.
In terms of sciatic nerve impairment, the examiner should also stated whether the foot dangles and drops, whether there is active movement possible of the muscles below the knee or whether flexion of the knee is weakened or lost.
The examiner should comment as to whether there is marked muscle atrophy.
If there is neurologic impairment of the lower extremities that is not related to the service connected back disability, the examiner should so report. The rationale for all opinions expressed should also be provided.
Request that the examiner comment on the impairment imposed by all aspects of the low back disorder and provide an opinion whether the Veteran is capable of activities necessary for substantially gainful employment.
2. The agency of original jurisdiction should review the examination report to ensure that it contains the opinions and rationales requested in this remand.
3. If any benefit for which there is a perfected appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010).
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs